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State v. Martinez2/15/2002
Defendant appeals from a judgment by the Second Judicial District Court, which affirmed his metropolitan court conviction for DWI (first offense). Defendant was convicted under NMSA 1978, Section 66-8-102(C) (1999), which prohibits driving with "an alcohol concentration of eight one-hundredths or more in his blood or breath." Defendant argues that there was insufficient evidence to support his conviction based on breath alcohol concentration (BAC) tests that were not administered until an hour and thirty-one minutes after he finished driving and yielded results of 0.09/0.09. We affirm Defendant's conviction.
BACKGROUND
On October 20, 1999, Albuquerque Police Detective Ronnie Watkins and Officer Jerry Potter observed Defendant's vehicle as it failed to stop at a stop sign. Detective Watkins and Officer Potter testified that they also observed the vehicle weaving in its lane and taking an unusually wide turn, before pulling Defendant over at approximately 10:11 p.m.
Both officers testified that, after Defendant stopped his vehicle, he extended both hands and his car keys from the car window. The officers considered this unsolicited behavior unusual and inconsistent with what they ordinarily encounter during a traffic stop. They observed that Defendant had bloodshot, watery eyes, and smelled of alcohol. He also exhibited a "thick tongue" and slurred speech. Defendant admitted to drinking earlier in the evening.
Detective Watkins administered four field sobriety tests. Defendant did not perform well on any of them. Defendant initially gave the officers a false name, and did not reveal his true identity until thirty or forty minutes later.
Officer Potter, who was certified to operate the breathalyzer machine, observed Defendant at the police station for the prescribed twenty-minute observation period before testing Defendant's BAC level at 11:42 and 11:44 p.m., approximately an hour and a half after Defendant was pulled over. Both tests yielded a BAC of 0.09.
Several factors contributed to the delay of an hour and a half in testing Defendant. Because the officers determined that both Defendant and his passengers were intoxicated, arrangements had to be made to tow the vehicle before transporting Defendant to the police station. Once at the police station, when Defendant was removed from the car, the officers found a handgun stuffed between the cushions of the patrol car. The officers were then obliged to question Defendant about the gun. Ultimately, no charges were brought against him because of the handgun. In addition, Defendant was observed for twenty minutes before the test was administered, as required by law. See State v. Gardner, 1998-NMCA-160, 5, 126 N.M. 125, 967 P.2d 465 (holding breath alcohol test results inadmissible unless officer complies with twenty-minute continuous observation period).
Defendant was originally charged with violations of both Section 66-8-102(A), the statute that describes the more general offense of driving under the influence of alcohol, as well as Section 66-8-102(C), which describes the per se violation of driving with a BAC of 0.08 or higher. See State v. Dutchover, 85 N.M. 72, 73, 509 P.2d 264, 265 (Ct. App. 1973) (holding that "under the influence," for the purpose of Subsection (A), means that a defendant was "to the slightest degree . . . less able, either mentally or physically . . ., to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public"). At trial, however, the State changed its mind. At Defendant's request, the State, somewhat inexplicably, withdrew its jury instruction regarding the DWI offense
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